On March 31, 2010, the Supreme Court made a landmark decision in Padilla v. Kentucky, ruling that lawyers are required to inform their clients if their guilty pleas carry a risk of deportation.
While the Supreme Court has obviously done the right thing to ensure that lawyers advise clients that deportation could be the result of pleading guilty to a crime (it seems to me this should be part of counsel's responsibility anyway), there is a bigger issue that isn't being discussed.
Legal immigrants who engage in illegal activities have broken the agreement they made with the United States when they were welcomed into this country. Yet I keep coming across the idea that we should feel sorry for the immigrants who find themselves in this situation. Is it fair that legal residents convicted of the same crimes as U.S. citizens should be ripped from their homes, families and jobs and deported to countries they haven't seen in years, if ever? No, I don't think it's fair. Perhaps the laws that deport otherwise good people are too harsh and need to be changed. But under current law, permanent residents do not share the same rights and responsibilities as U.S. citizens. Is it too much to ask legal immigrants to avoid engaging in criminal activities in the first place?
Latest Developments
Background
The case - Padilla v. Kentucky
Jose Padilla, a lawful permanent resident for over 40 years and Vietnam vet, pled guilty to transportation of a large amount of marijuana in his tractor-trailer. When he learned later that he would be deported for the offense, he claimed that his lawyer failed to advise him of this consequence, going so far as to tell Padilla that he, "did not have to worry about immigration status since he had been in the country so long." Padilla claims that he would have insisted on his case going to trial had he been made aware that if convicted he would be deported.
The Supreme Court had to determine whether "Padilla's counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country." The justices ruled 7 to 2 that the Sixth Amendment guarantee of an effective counsel extends to advice about the risk of having to leave the country. Justice Stevens wrote in the opinion:
"It is our responsibility under the Constitution to ensure that no criminal defendant--whether a citizen or not--is left to the 'mercies of incompetent counsel.' To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."
The high court did not determine whether or not Padilla is entitled to relief based on whether he had been prejudiced. The case will be sent back to the Kentucky Supreme Court to decide whether or not Padilla's guilty plea should be thrown out.